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District Court 1 July 2021

R v Elbadar

[2021] NSWDC 290

Firearms & weaponsPublic order & justice offences
POSSESSION OF UNAUTHORISED FIREARM.

Citation: R v Elbadar [2021] NSWDC 290
Court: District Court of New South Wales
Date: 1 July 2021
Judge(s): Mahony SC DCJ

Background

The offender was sentenced for three offences arising from two separate sets of facts. The first concerned two drive-by shootings at a massage parlour in Newtown on 9 and 10 March 2018, during which multiple rounds were fired at the premises in the early hours of the morning while people were inside. After the shootings, the offender took possession of the Smith and Wesson pistol used in those shootings, knowing of its use, making him an accessory after the fact on each occasion.

The second set of facts concerned the discovery of an Uzi submachine gun at the offender's parents' home in Greenacre, found on 16 March 2018 when police attended after being contacted by his mother. Police also found a magazine containing 24 unfired cartridges compatible with the Uzi, the Smith and Wesson pistol, various drugs, and drug-related items.

The offender had a substantial criminal history dating from 2009, including prior firearms and weapons offences. He reported a significant deterioration in his circumstances following a serious motor vehicle accident in February 2016 and the death of his father in 2018, both of which were said to have contributed to escalating drug addiction.

Legal Issues

  • What was the objective seriousness of the accessory after the fact offences (taking possession of the pistol knowing it had been used in the shootings)?
  • What was the objective seriousness of possessing the Uzi submachine gun as an unauthorised firearm under section 7(1) of the Firearms Act 1996?
  • What utilitarian discounts applied for the guilty pleas entered at different stages of proceedings?
  • What weight should be given to the offender's subjective circumstances, including mental health diagnoses, drug addiction, and prospects of rehabilitation?
  • Whether a full-time custodial sentence was required, or whether an Intensive Corrections Order (ICO) was appropriate?
  • How the principle of totality should apply to the aggregate sentence across multiple offences?
  • Whether special circumstances existed to justify altering the standard ratio between head sentence and non-parole period?

Decision

Issue 1: Objective seriousness of the accessory after the fact offences

The court accepted that the sole purpose of the offender taking possession of the pistol was to assist the perpetrator to escape identification and arrest, thereby impeding the police investigation (at [83]). The court rejected the submission that objective seriousness was reduced because the offender did not successfully delay or thwart the investigation, noting that the firearm was ultimately seized only because the offender's mother contacted police (at [83]). The court found that the weapon used in a shooting is critical forensic evidence, and concealing it strikes at the integrity of any investigation. Both accessory offences were assessed as falling within the mid-range of objective seriousness for offences under sections 93GA(1) and 347 of the Crimes Act 1900, while acknowledging that the criminality was effectively encapsulated in a single act of receiving the firearm (at [83]-[84]).

Issue 2: Objective seriousness of possessing the Uzi submachine gun

The court identified the nature of the weapon as the most relevant factor: the Uzi was a prohibited firearm in working order, capable of firing projectiles in rapid succession, with no justifiable reason for its presence in the community (at [85]). It was stored unsecured in a garage cabinet with a compatible magazine containing 24 unfired cartridges nearby, meaning it could be loaded and fired by anyone who discovered it within a very short time (at [85]). The court declined to infer that the Uzi had been in the offender's possession for the same short period as the pistol, treating the duration as simply unknown (at [86]). The offence was assessed as falling between the mid-range under section 7(1) of the Firearms Act 1996 (at [86]).

Issue 3: Utilitarian discounts for guilty pleas

A 25% utilitarian discount applied to sequences 3 and 4, reflecting the early pleas entered in the Local Court (at [91]). A 15% discount applied to Count 2 on the indictment, reflecting the later plea entered in the District Court after committal for trial (at [91]).

Issue 4: Subjective circumstances, mental health, and rehabilitation

The court accepted that the offender's drug use had spiralled following the 2016 motor vehicle accident and his father's death in 2018 (at [94]). However, it was not satisfied that the symptomatology identified by the psychologist had a causal connection to the current offending, noting the history relied upon was self-reported post-offending and that the psychologist was not qualified to formally diagnose psychiatric illness (at [95]). The court found the offender's prospects of rehabilitation to be guarded and entirely dependent on adherence to the treatment plan and avoidance of relapse (at [96]). The mental health issues were accepted as diminishing the significance of both general and specific deterrence, and as potentially making incarceration more onerous (at [97]). The offender's criminal history demonstrated a failure to rehabilitate on successive occasions and disentitled him to any leniency (at [92]-[93]).

Issue 5: Full-time custody versus Intensive Corrections Order

The court was satisfied that no sentence other than imprisonment was appropriate in all the circumstances (at [103]). The submission to serve any sentence by way of an ICO was rejected, consistent with the approach in R v Fangaloka [2019] NSWCCA 173, having regard to the offender's history of firearms offences, untreated mental health and drug dependency, and community safety considerations.

Issue 6: Totality and the aggregate sentence

Applying the principle of totality, the court found the sentences for sequences 3 and 4 should run fully concurrently with each other, as they arose from the same criminal conduct. Some accumulation was required between those offences and Count 2, which was a separate and serious offence. An aggregate sentence of six years imprisonment was imposed under section 53A of the Crimes (Sentencing Procedure) Act 1999 (at [103]).

Issue 7: Special circumstances

The court found special circumstances existed based on the offender's need for extended supervision and rehabilitation to ensure his productive return to the community (at [104]). The non-parole period was set at three years and nine months, representing a departure from the standard statutory ratio in favour of a longer parole period (at [104]).

Orders Made

  • Aggregate sentence of six years imprisonment, with a non-parole period of three years and nine months commencing 15 November 2019 and expiring 14 August 2023; balance of term of two years and three months expiring 14 November 2025.
  • For the related offence of possessing an unregistered firearm (the Uzi submachine gun) under the section 166 certificate: fixed term of three years imprisonment, served concurrently, commencing 15 November 2019.
  • Form 1 matters attached to Count 2 certified as taken into account.

Key Takeaways

  • An offender who takes possession of a firearm knowing it was used in a shooting is assessed as an accessory after the fact at mid-range objective seriousness where the sole purpose was to conceal the weapon from investigators, regardless of whether the concealment ultimately succeeded (at [83]-[84]).

  • The District Court confirmed that the nature of the weapon is the primary factor in assessing objective seriousness for unauthorised firearm possession, with a prohibited firearm such as a submachine gun in working order stored unsecuredly with compatible ammunition warranting a finding at or above mid-range under section 7(1) of the Firearms Act 1996 (at [85]-[86]).

  • A failure to successfully impede police does not reduce the objective seriousness of an accessory after the fact offence where the offender's own purpose was plainly to assist the principal offender evade justice, and where the investigation succeeded only through the actions of a third party (at [83]).

  • Psychological evidence relying entirely on a post-offending, self-reported history carries limited weight, and courts may decline to find a causal connection between identified symptomatology and the offending where that foundation is insufficiently established (at [95]).

  • Guarded rehabilitation prospects, a history of failed supervision, and untreated mental health combined with prior firearms offences may collectively foreclose an Intensive Corrections Order even where mental health issues are accepted as diminishing the importance of deterrence (at [96]-[97], [103]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999
- Crimes Act 1900
- Criminal Procedure Act 1986
- Drug Misuse & Trafficking Act 1985
- Firearms Act 1996
- Poisons and Therapeutic Goods Act 1966
- Weapons Prohibition Act 1998

Cases
- Andary v R [2020] NSWCCA 75
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- DPP (Commonwealth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- El Jamal v R [2017] NSWCCA 243
- Mill v The Queen (1988) 166 CLR 59
- R v Fangaloka [2019] NSWCCA 173
- R v Farrell (2014) 239 A Crim R 212; [2014] NSWCCA 30
- R v Mouloudi [2004] NSWCCA 96
- R v Thurgar (1990) 51 A Crim R 109 at 113
- R v Van Ryn [2016] NSWCCA 1
- Veen v R [No 2] (1998) 164 CLR 465